In the Matter of E.Y. (Minor Child) and J. M. (Father) v. Indiana Department of Child Services and Child Advocates, Inc. , 126 N.E.3d 872 ( 2019 )

FILED
May 29 2019, 11:20 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Lisa M. Johnson Curtis T. Hill, Jr.
Brownsburg, Indiana Attorney General of Indiana
David E. Corey
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of E.Y. (Minor May 29, 2019
Child), Court of Appeals Case No.
19A-JC-114
and
Appeal from the Marion Superior
J. M. (Father) Court
Appellant-Respondent, The Honorable Marilyn Moores,
Judge
v.
The Honorable Jennifer Hubartt,
Magistrate
Indiana Department of Child
Trial Court Cause No.
Services,
49D09-1808-JC-2146
Appellee-Petitioner,
and
Child Advocates, Inc.,
Appellees-Guardian Ad Litem.
Riley, Judge.
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STATEMENT OF THE CASE
[1] Appellant-Respondent, J.M. (Father), appeals the trial court’s determination
that his minor child, E.Y. (Child), is a Child in Need of Services (CHINS).
[2] We reverse.
ISSUE
[3] Father presents us with one issue on appeal, which we restate as: Whether the
trial court erred when it adjudicated Child to be a CHINS.
FACTS AND PROCEDURAL HISTORY
[4] A.Y. (Mother) is the mother of Am.M., born on June 5, 2003, S.M., born on
October 25, 2008, An.M., born on August 2, 2010, and E.Y., born on August
23, 2013. (collectively, Children). A.M. is the biological father to the three
oldest children; while Father is the biological father to E.Y. 1 Mother’s
relationship with A.M. ended seven years ago and the Children have not been
around A.M. since.
[5] The relationship between Mother and A.M. was characterized by domestic
violence. A.M. would hit Mother and tie her up, telling Am.M. that he was
going to kill her Mother and “she was going to help him bury” her. (Transcript
p. 57). After the relationship ended, Mother started seeing a therapist to help
1
Mother and A.M. do not participate in this appeal. This court will include facts with respect to Mother,
A.M., and E.Y.’s three older siblings as far as these are relevant to the appeal.
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her cope with the psychological effects of the abuse. Approximately two years
after A.M. left, Am.M. “started acting out” and Mother took Am.M to a
therapist.
[6] Mother entered into a relationship with Father in 2012. At the time of the
commencement of the CHINS proceedings, Father and Mother were living
together, parenting the Children. Mother and Father are both gainfully
employed, have medical insurance for themselves and the Children, and
maintain an appropriate home for the family. The Children are bonded with
Father and all four call him “Daddy.” (Tr. p. 48).
[7] Around March of 2017, Am.M.’s behavior changed. She started to make up
“stories and act[ed] out with boys and sometimes she g[o]t[] physical with
[Mother].” (Tr. p. 58). She also made two suicide attempts. Mother and
Father took Am.M. to see a therapist. When An.M. started school, she began
exhibiting behavior issues. As a result, Mother and Father took her to Am.M.’s
therapist. The therapist also offered family therapy to Mother, Father, and the
Children.
[8] At the beginning of June 2018, Mother and Am.M.’s therapist made a
“collaborative decision” to place Am.M. in in-patient care. Consequently, on
June 14, 2018, Am.M. was admitted to Columbus Behavioral Health Center
(CBHC); she was discharged on October 12, 2018. During her stay at CBHC,
Am.M. received therapeutic services by Jana Thompson (Thompson), the lead
program therapist. During one of the sessions, Am.M. told Thompson that
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“there was a great deal of domestic violence in the home.” (Tr. p. 14). She
specified that the violence occurred “[m]ostly between her Mother and [Father].
She also reported incidences of violence towards her[self] and the other
children.” (Tr. p. 16). Pursuant to her statutory obligation, Thompson notified
the Indiana Department of Child Services (DCS) about Am.M.’s allegations.
[9] On August 17, 2018, Thompson contacted Mother, informed her that she had
alerted DCS, and advised Mother to leave the house and take the Children to a
battered women’s shelter if she did not want DCS to remove the Children. As a
result of Thompson’s advice, Mother and the Children spent two nights in a
shelter.
[10] At the end of August 2018, Christina Vance (FCM Vance), an assessment
family case manager with DCS, performed an assessment of the family due to
Thompson’s report. Mother told FCM Vance that she had been in relationships
with instances of domestic violence before. However, Mother spoke generally
and “did not specify that it was with [Father].” (Tr. p. 69). Father expressed
his willingness “to do anything to reunite his family” and denied any domestic
violence in the home. (Tr. p. 70). He clarified that he is more of a
disciplinarian than Mother and admitted to striking S.M., “but he explained it
in a capacity to where it was more like a playful punch as versus abuse to sort of
toughen [S.M.] up.” (Tr. p. 70). Besides noticing S.M. stiffening up and having
a “fearful look on his face” when she mentioned Father to him, FCM Vance
did not observe anything “concerning or noteworthy” while talking to the
Children. (Tr. p. 71). An.M. and S.M. also told FCM Vance that Father
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consumes beer every day. At the conclusion of the assessment, DCS
recommended the Children to remain with Mother in the residence and for
Father to live elsewhere “because the [C]hildren expressed fear and then [DCS]
w[as] concerned about domestic issues between [Father] and [Mother].” (Tr. p.
71).
[11] On August 27, 2018, DCS filed its CHINS petition based on the allegations of
domestic violence between Father and Mother, which the Child had
purportedly witnessed. During the initial hearing, the trial court ordered the
Child to remain in Mother’s care contingent on Father not residing in the
residence. The trial court granted Father supervised visitation with the Child
and placed him on a Track Group Monitor, a blood alcohol monitoring device,
as well as ordered Father to be assessed for, and participate in, batterer’s
intervention treatment. Mother was ordered to participate in a domestic
violence assessment and follow all recommendations. In addition, the trial
court ordered trauma-focused cognitive behavioral therapy for the Children.
[12] On October 26, 2018, 2 the trial court conducted a factfinding hearing at which
evidence was presented that Father and Mother had followed all
recommendations and Father had not tested positive for alcohol abuse.
Thompson testified that she had spoken with Mother on multiple occasions and
2
An initial factfinding hearing was conducted on October 24, 2018, at which A.M., father to Am.M., S.M.,
and An.M., entered an admission that his three children should be determined CHINS. The trial court
accepted the admission and took the adjudication under advisement pending Mother and Father’s
factfinding.
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Mother had told Thompson that she “disagreed with [Am.M.’s] account of
what occurred.” (Tr. p. 21). Mother clarified that Father “had a temper” and
they were “walking on egg shells as to not upset him,” but she denied any
domestic violence. (Tr. p. 36). As a result of her conversations with Mother,
Thompson characterized Mother’s report as “emotional domestic violence.”
(Tr. p. 36). Thompson also described Mother as genuinely concerned about
Am.M.’s wellbeing and as a responsible parent who followed DCS’s
recommendations. Thompson elaborated that she had no concerns about
Mother’s handling of Am.M.’s medical or mental health.
[13] Mother and Father both testified that they have a good relationship and that
there has never been any physical violence between them. They both testified
that Father has never physically abused the Children. Mother stated that her
concerns about Father’s temper were caused by the abuse she had suffered at
the hands of A.M. and her resulting PTSD. Mother explained that because of
this abuse, she becomes frightened whenever she argues with another person. It
is something she is “trying to get through in [her] therapy[.]” (Tr. p. 60).
Mother also testified that after DCS became involved, she tried to continue to
schedule the Children’s individual therapy sessions with the same therapist they
had all been seeing during family therapy as the Children were already
comfortable with her, but DCS cancelled those appointments and scheduled
them with a different therapist.
[14] Father has never been arrested for, or convicted of, any act of violence, nor
were any police reports made accusing Father of domestic violence. Father
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testified that he was following DCS’s recommendations and the court-ordered
services “willingly and accordingly.” (Tr. p. 43). He confirmed that Am.M.
and An.M. were in therapeutic therapy before DCS became involved with the
family.
[15] Denisha Thomas, the permanency case manager assigned to the family (PCM
Thomas), made monthly home visits with the Children. She confirmed that
DCS believes it is necessary for the court to be involved with the family because
the safety concern would be that there are – that some of the
[C]hildren were receiving therapy but not all of the [C]hildren are
receiving therapy to address the domestic violence that was
alleged and received from the [C]hildren or the statements
received from the [C]hildren in regarding witnessing the domestic
violence in the home.
(Tr. p. 81). PCM Thomas elaborated that besides the Children’s statements,
DCS did not investigate whether domestic violence between Mother and Father
had actually occurred. She testified that DCS recommended Mother for weekly
domestic violence therapy sessions and Father for batterer’s intervention
services. However, when Father had completed his intake assessment for the
batterer’s intervention services, the assessor contacted PCM Thomas informing
her that “there was not enough information [] to make a recommendation” and
“she wanted to address why the referral was submitted.” (Tr. pp. 80, 88). Only
after PCM Thomas supplied the assessor with further information and
“recommended [Father] to re-complete a [Domestic Violence] assessment,” did
the assessor refer Father to the 26-week batterer’s intervention services. (Tr. p.
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88). PCM Thomas concurred with Thompson’s testimony that Mother is a
responsible caregiver for the Children and has been very forthcoming with
everyone. She elaborated that DCS’s only concern is “that if DCS is not
involved will S.M. remain in therapy” but agreed that he is in therapy now, is
doing well with it, and “there’s no reason to believe that Mother’s not going to
continue those services.” (Tr. p. 86). The Children have expressed to her
that—except for E.Y. who was subject to a visitation order—they are upset that
they cannot visit with Father and cannot “understand why [Father] is not in the
home.” (Tr. p. 90).
[16] At the close of the evidence, the trial court took the matter under advisement.
On November 26, 2018, the trial court concluded E.Y. to be a CHINS, finding
that
The [C]hildren need a safe and stable home environment as well
as counseling, therapy, or other therapeutic intervention to cope
with and overcome long term exposure to a volatile home
environment, domestic violence, and substance abuse they will
not receive or are unlikely to receive without the coercive
intervention of the [c]ourt.
(Appellant’s App. Vol. II, p. 112). On December 19, 2018, the trial court
entered a dispositional order. During the hearing on the order, evidence was
presented that Mother had completed the recommendations of the domestic
violence assessment, and the homebase case manager recommended to close
out the homebased services. Father had completed half of his batterer’s
intervention services and was “more than happy to complete those.” (Tr. p.
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108). Evidence was presented that all the Children expressed the desire to
spend time with Father and the Children “have generally been in a better mood
since they had visits with Father.” (Tr. p. 115). At the close of the evidence,
the trial court ordered Father to complete the domestic violence therapy and
added family therapy, as well as couple’s therapy. The trial court continued
Father on the alcohol monitoring, but granted Father’s request to return to the
family home.
[17] Father now timely appeals. Additional facts will be provided if necessary.
DISCUSSION AND DECISION
[18] Father contends that the trial court abused its discretion in finding Child to be a
CHINS. In order to adjudicate a child as a CHINS, DCS must prove by a
preponderance of the evidence that
(1) The child’s physical or mental condition is seriously impaired
or seriously endangered as a result of the inability, refusal, or
neglect of the child’s parent . . . to supply the child with
necessary food, clothing, shelter, medical care, education, or
supervision; and
(2) The child needs care, treatment, or rehabilitation that:
(A)The child is not receiving; and
(B) Is unlikely to be provided or accepted without the coercive
intervention of the court.
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Ind. Code § 31-34-1-1. In making its determination, the trial court should
consider the family’s condition not just when the case was filed, but also when
it was heard. In re S.D., 2 N.E.3d 1283, 1290 (Ind. 2014). A CHINS
adjudication cannot be based solely on conditions that have ceased to exist. In
re S.A., 15 N.E.3d 602, 611 (Ind. Ct. App. 2014), trans. denied. The adjudication
must be based on the evidence presented in court and not on the allegations in
the pleadings. Maybaum v. Putnam Co. O.F.C., 723 N.E.2d 951, 954 (Ind. Ct.
App. 2000). In reviewing a CHINS determination, we do not reweigh evidence
or assess witness credibility. Matter of N.C., 72 N.E.3d 519, 523 (Ind. Ct. App.
2017). We consider only the evidence in favor of the juvenile court’s judgment,
along with any reasonable inferences arising therefrom. Id.[19] Father maintains that the trial court erred in adjudicating Child a CHINS
because there was no evidence E.Y. is in any danger, or that her needs would
go unmet in the absence of the coercive intervention of the court. The purpose
of a CHINS inquiry is to determine whether a child’s circumstances require
services that are unlikely to be provided without the intervention of the court,
and thus, the focus of a CHINS adjudication is on the condition of the child
alone, not on the culpability of one or both parents. In re N.E., 919 N.E.2d 102,
105-06 (Ind. 2010). Nonetheless, “[n]ot every endangered child is a child in
need of services, permitting the State’s parens patriae intrusion into the ordinarily
private sphere of the family.” In re S.D., 2 N.E.3d at 1287. Rather, a CHINS
adjudication under section 31-34-1-1 requires proof of three basic elements: the
parent’s actions or inactions have seriously endangered the child; the child’s
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needs are unmet; and “perhaps most critically,” those needs are unlikely to be
met unless the State intervenes. Id. It is the last element that guards against
unwarranted State interference in family life. Id. State intrusion is warranted
only when parents lack the ability to provide for their children. Id. In other
words, the focus is on the best interests of the child and whether the child needs
help that the parent will not be willing or able to provide. Id.
[20] Prior to DCS becoming involved with the family, Mother and Father had been
proactively addressing certain problems: Mother was seeing a therapist to deal
with the consequences of a prior abusive relationship, the family had entered
family therapy, and Am.M. and An.M. were enrolled in individual therapeutic
sessions. Both parents were gainfully employed, lived in an appropriate
residence, and carried insurance which covered the therapy sessions and the
Children’s medical care. DCS intruded into the family’s life when allegations
of domestic violence between Father and Mother and between Father and S.M.
surfaced during Am.M.’s therapy sessions. Based on these allegations and at
DCS’s recommendation, the trial court ordered the family to enroll in family
therapy sessions and the Children in individual therapy sessions. Mother was
required to take domestic violence therapy, and Father was ordered to
participate in batterer’s intervention treatment and wear a Track Group
Monitor to supervise his alcohol abuse.
[21] After the filing of DCS’s CHINS petition and prior to the conclusion of the fact-
finding hearing, evidence was presented that Mother and Father had followed
all recommendations and Father had not tested positive for alcohol abuse.
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Father had willfully enrolled in batterer intervention treatment even though
Mother and Father denied any domestic violence and Father’s initial
assessment for the services was inconclusive. By the end of the fact-finding
hearing, DCS agreed that all the Children were enrolled in therapy and there
was no reason to conclude that Mother would discontinue those services if
DCS’s involvement with the family ended.
[22] Mindful to consider the family’s condition not just when the case was filed, but
also when it is heard, we note that resolution of the family’s issues had started
prior to DCS’s involvement. Although DCS’s intervention might have enabled
a faster resolution, such as Father’s participation in batterer’s intervention
sessions, it is clear that the family had recognized the problems and was
working towards a positive outcome. Accordingly, the evidence fails to show
that at the time of the fact finding hearing, Father was unwilling to provide the
care Child needed without coercive court intervention. When coercion is not
necessary, the State may not intrude into a family’s life. We therefore reverse
the trial court’s judgment that Child was a CHINS.
CONCLUSION
[23] Based on the foregoing, we reverse the trial court’s adjudication of Child as a
CHINS.
[24] Reversed.
[25] Bailey, J. and Pyle, J. concur
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